Update on the Government Response to the Potential Swine Flu Pandemic

What is the Swine Flu?

Richard J. Conway and Merle M. DeLancey Jr.

According to the U.S. Centers for Disease Control (CDC), the Swine Influenza (swine flu) is a respiratory disease caused by type A influenza virus that regularly causes outbreaks of influenza in pigs. The classical swine flu virus (an influenza type A H1N1 virus) was first isolated from a pig in 1930. Swine flu viruses do not normally infect humans. However, sporadic human infections with swine flu have occurred and are occurring now.

What is Known About this Current Outbreak?

According to the CDC, in late March and early April 2009, cases of human infection with swine influenza A (H1N1) viruses were first reported in Southern California and near San Antonio, Texas. Other states and foreign governments have reported cases of swine flu infection in humans, and cases have been reported internationally as well. As of April 30, 2009, there have been 109 cases reported in the United States, with most in New York City, California, and Texas. A toddler who crossed the border from Mexico into south Texas died from a new strain of swine flu on April 29, 2009 in a Houston hospital, the first confirmed death from the virus in the United States.

On April 27, 2009, the United Nations public health agency raised its global pandemic alert level to “phase 4” from “phase 3,” recognizing that the A/H1N1 virus is spreading from person to person and urging countries to prepare for a pandemic. On April 28, 2009, The World Health Organization said that the outbreak is now at “phase 5,” which would indicate that the virus is causing multiple outbreaks or widespread human infection.

What are Federal and State Governments Doing to Prepare?

The U.S. Department of Homeland Security, in coordination with the White House, declared a public health emergency over the weekend of April 25 in order to expedite resource delivery to different parts of the country. This also authorized the release of 12 million courses of antiviral drugs and key medical equipment to states based on the priority of where cases are found. According to news sources, the Pentagon announced on April 29, 2009 that it is planning for a task force that would help with transportation, logistics, and distributing medical supplies in the event of a pandemic.

Additionally, according to the White House, the declaration releases funding that can help defray costs for moving infrastructure around the country to ensure that there are available resources to produce additional antiviral drugs, to ramp up the production of a vaccine, and to ensure that resources that are necessary are available at the state, local, and federal levels if needed.

On April 28, 2009, the president asked Congress for an additional appropriation of $1.5 billion to enhance the country’s capability to respond to the potential spread of this outbreak. According to the White House, these funds should be provided with maximum flexibility. Among the uses of these funds could be supplementing antiviral stockpiles; developing a vaccine; supporting the monitoring, diagnostic, and public health response capabilities; and assisting international efforts to stem this outbreak.

Several states, including California and Texas, have declared their own health emergencies in order to release emergency funding and provide better coordination of state-level resources. States have also closed schools and are looking at closing other public venues if the outbreak reaches pandemic proportions.

Government Contracts Issues and Opportunities

By declaring a “Public Health Emergency,” the U.S. government has many more tools available to procure goods and services to mitigate or eliminate the impact of a swine flu pandemic, as well as to encourage companies to participate in the related federal efforts. The steps the U.S. government can now take include:

  • Spending public health emergency funds in order to support efforts to contain or eliminate the swine flu outbreak;
  • Deploying assets from the Strategic National Stockpile, including vaccines, antivirals, and emergency equipment such as respirators and portable medical facilities;
  • Increased micropurchase thresholds;
  • Using additional authority allowing for expedited purchase of equipment, vaccines, countermeasures, and personnel services necessary to perform, administer, or support research and development; and
  • Implementing liability mitigation measures allowing response efforts by the private sector without fear of significant claims of tort liability following the events of the expected pandemic.

These steps provide the U.S. government with an increased ability to respond to the potential pandemic, but if a company’s products or services are to be acquired, it is important to ensure that the contracting process is carefully monitored and implemented on the contractor’s end. Recent emergency events (Sept. 11 attacks, Hurricane Katrina, and others) have shown that emergency contracting presents immediate opportunities as well as the potential for increased oversight at a later date. Therefore, it is critical to involve experienced government contracting counsel immediately.

Similarly, with the expected appropriation of $1.5 billion to counter the immediate swine flu pandemic threat, as well as future potential pandemics, there are multiple opportunities for companies to engage with the U.S. government to address this serious public threat. Categories of products and services that could be procured include:

  • Additional vaccines and antivirals, including related medical equipment and supplies;
  • Personal protective equipment;
  • Emergency response equipment;
  • Support services to assist federal, state, and local government agencies in their public health response efforts;
  • Infrastructure to support research and development of future treatments; and
  • Domestic facilities to provide immediate production of pharmaceuticals in the event of another public health emergency.

If a company has the capabilities to contribute to the efforts against pandemic events, it would be critical to conduct outreach immediately to Congress and the executive branch.

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